Arizona Court of Appeals Division Two Holds That Work Product Protection Of Expert’s File Was Restored By Withdrawing Witness Designation, Even After Expert Testified About Preliminary Matters, Where Parties Had Reached Stipulation Regarding Subject Matter Of Expert’s Testimony.

A discovery dispute arose from a dissolution of marriage action after a pre-decree hearing was convened to address the parties’ possession of liquid assets pendente lite. Wife had called Byron Fox, a financial consultant, to testify at the hearing on March 24, 2006 and had designated him as an expert witness for trial. On March 28, 2006, Husband subpoenaed Fox’s entire file to be produced at a continued hearing set for March 31, 2006. Wife objected to the subpoena and Fox did not produce the file at the March 31st hearing. The superior court judge allowed Husband’s attorney to cross-examine Fox.

Sometime after the hearing, wife produced only those portion of Fox’s file that she believed were related to the subject matter of his expected testimony at trial. Husband filed a motion to compel and a hearing on the motion was set for June 27, 2006. Before that hearing, however, two “critical” events occurred: (1) on May 26, the judge approved a stipulation of the parties resolving the distribution of liquid assets pendente lite and (2) on June 6, 2006, wife withdrew her designation of Fox as a trial witness. After the June 27, 2006 hearing on the motion to compel, the judge concluded that wife had waived any privilege that may have existed regarding Mr. Fox as a consulting expert, regardless of whether Mr. Fox has testified to the issues to date or not.

Division Two accepted special action jurisdiction and vacated the judge’s order. The court noted that although the scope of discovery is expansive for expert witnesses, Ariz. R. Civ. Pro. 26(b)(4) “distinguishes sharply between testimonial and consulting experts.” Pursuant to that rule, discovery from consulting experts is prohibited except “upon a showing of exceptional circumstances.” The majority approach is that when a party changes its expert’s designation from “testifying expert” to “non-testifying” expert under Rule 26(b)(4), discovery by the other party is limited to the restriction set forth for non-testifying experts. This remains true even where, as here, the expert has testified at a pretrial proceeding on issues subsequently resolved by stipulation.

The court noted, however, that its holding was limited to the facts before it, and “do[es] not suggest that work product protection may always be restored by withdrawing a witness designation, even after an expert has testified about preliminary matters,” because “the subjects of pretrial testimony might not always be as readily segregated from trial issues as they are here.”

Chief Judge Pelander wrote the opinion; Judge Howard and Judge Vasquez concurred.